REPUBLIC HOLDINGS LTD AND ANOTHE v. PANG WAI KWONG AND ANOTHER

DCCJ 761/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 761 OF 2017

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DECISION

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1.  Practice Direction 27, §4 requires:-

“All writs and originating summonses should contain a plea that the relief sought do fall within the jurisdiction of the District Court, specifying which section(s) of sections 32 to 39 of the District Court Ordinance (Cap. 336) do apply to the case.”

This requirement has often been overlooked by practitioners.  This is yet another example.

The plaintiffs’ case

2.  The plaintiffs apply for a default judgment against the defendants pursuant to Order 19 rule 7.

3.  The plaintiffs’ case as pleaded in the statement of claim is as follows:-

(a) The 1^st defendant was the legal and equitable owner of 1/3 undivided shares of the property known as 78 Feng Lau Chuen, Fanling, New Territories, Hong Kong, erected on Fanling Lau Lot No 46 in DD 51 (“the Property”).

(b) By a written loan agreement (“the 1^st agreement”) entered into by the 1^st plaintiff and the 1^st defendant on or around 1 May 2016, the 1^st defendant has agreed to repay HK$565,370 and HK$38,400 to the 1^st plaintiff with interests in accordance with the terms of the 1^st agreement, including the term that in the event of default in repaying any instalment stipulated in the agreement for over 3 times, the 1^st defendant shall assign his interest in the Property to the 1^st plaintiff as security for the repayment of the loans.

(c) By another written loan agreement (“the 2^nd agreement”) entered into by the 2^nd plaintiff and the 1^st defendant on or around 1 May 2016, the 1^st defendant shall repay HK$69,300 to the 2^nd plaintiff with interests in accordance with the terms of that agreement.

(d) In breach of the 1^st agreement, the 1^st defendant has only repaid some but not all the indebtedness owed to the 1^st plaintiff under the 1^st agreement.

(e) In breach of the 2^nd agreement, the 1^st defendant has failed to repay the sum owed to the 2^nd plaintiff under the 2^nd agreement.

(f) Unbeknown to the plaintiffs, the 1^st defendant by a deed of gift dated 12 December 2016 (“the Deed of Gift”), the 1^st defendant as donor assigned his 1/3 undivided shares of the Property to the 2^nd defendant with the consideration stated therein as being “natural love and affection”.

(g) On 10 January 2017, the plaintiffs commenced DCCJ 106/2017 against the 1^st defendant for the recovery of the sums due under the 1^st agreement and the 2^nd agreement.  On 4 May 2017, judgment was entered in favour of the plaintiffs and against the 1^st defendant.  By that judgment, the 1^st defendant was required to pay HK$756,180 together with interests to the 1^st defendant and costs of HK$7,130 (“the judgment debt”).  The judgment debt is still outstanding.

(h) As far as the plaintiffs know, the 1^st defendant’s 1/3 undivided shares of the Property was his only asset.

4.  The plaintiffs seek the following reliefs:-

(a) a declaration that the Deed of Gift constitutes a disposition of property by the 1^st defendant with intent to defraud creditors and is voidable at the instance of the plaintiffs being persons thereby prejudiced pursuant to s 60 of the Conveyancing and Property Ordinance; and

(b) an order that the Deed of Gift be set aside.

Jurisdiction

5.  It is well-established that in considering an application of this kind, the court would not receive any evidence and would decide the application according to the applicant’s pleading alone.  See Leung Pak Ki v The Estate of Pang Kau (deceased) (HCA 624/2009, 1 March 2016), per DHCJ Paul Lam SC in [5].

6.  Contrary to the requirement in Practice Direction 27, §4, there is no plea in the statement of claim touching upon the jurisdiction of this court. The plaintiffs have simply said nothing as to why their claim is within the jurisdiction of this court.  Further, while the plaintiffs’ claim concerns the Property, nothing about the annual rent or the ratable value of the Property is mentioned in the statement of claim.  In the absence of all these, it is simply not possible for me to give the default judgment sought by the plaintiffs.

Disposition

7.  I dismiss the plaintiffs’ application.  As the defendants are absent in this hearing, I make no order as to costs.